[2015] KEHC 3571 (KLR)
The court found that the sentence of six years imprisonment imposed on the appellant for the offence of driving without due care and attention was unlawful, as it exceeded the maximum penalty of one year imprisonment or a fine of Ksh. 100,000 provided under section 49(1) of the Traffic Act for a first offender. The...
Source-derived case information.
- Citation
- [2015] KEHC 3571 (KLR)
- Parties
- Appellant: Samuel Kipyego; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 177 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- GO Shikwe
- Legal Topics
- Traffic Offences, Sentencing Principles, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kipyego
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of six years imprisonment for driving without due care and attention was lawful under section 49(1) of the Traffic Act.
- 2 Whether the appellant, having pleaded guilty as a first offender, was entitled to a lesser sentence or fine.
Ratio Decidendi
The court found that the sentence of six years imprisonment imposed on the appellant for the offence of driving without due care and attention was unlawful, as it exceeded the maximum penalty of one year imprisonment or a fine of Ksh. 100,000 provided under section 49(1) of the Traffic Act for a first offender. The court held that sentencing must strictly adhere to statutory limits, and the appellant, having pleaded guilty and being a first offender, was entitled to the statutory maximum fine or, in default, the maximum term of imprisonment prescribed by law. The court therefore set aside the unlawful sentence and substituted it with a fine of Ksh. 100,000, or in default, one year...
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of six years imprisonment is set aside.
- The appellant is sentenced to a fine of Ksh. 100,000 or in default, one year imprisonment from the date of conviction.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 177 OF 2014
SAMUEL KIPYEGO….........…..........................................….. APPELLANT
VERSUS
REPUBLIC……….……....................................................…RESPONDENT
(From original Conviction and Sentence in Criminal Case No. 2672 of 2014 of the Senior Resident Magistrate's Court at Mariakani – Hon. Ekhubi - SRM)
JUDGMENT
The appellant was Convicted and Sentenced to six (6) years imprisonment for the offence of driving a motor vehicle without due care and attention contrary to section 49(1) of the Traffic Act.
The particulars were that:-
“On the 8th day of February, 2014 at about 8:00 pm at Managoni area along Mombasa Nairobi road in Likifi County, being the driver of motor vehicle Registration number KBQ 614 ZE 5979 make FAW Semi trailer did drive the said motor vehicle along the said road without due care and attention in that you failed to give way for the on coming motor vehicle registration number GK A 999F make Mitsubishi pick -up which was traveling in the opposite direction and collided with it as a result, causing injuries to No. 88129 CPL Nicholas Mburugu No. 35241 PC driver Job Oriendo and damages to both vehicles”.
The appellant pleaded guilty to the charges and was Convicted on his own plea.
Before Sentencing he was treated as a first offender.
Section 49(1) of the traffic Act provides,
“Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be guilty of an offence and liable -
(a) For a first offence to a term of imprisonment not exceeding one year or a fine of not exceeding one hundred thousand Shillings.
(b) For a second or subsequent offence, to a term of imprisonment not exceeding two years or to a fine not exceeding two hundred thousand shillings”.
In the present case the appellant was Sentenced to six (6) years imprisonment. This was clearly an unlawful Sentence and it ought to be disturbed.
The Sentence of six years imprisonment is reduced to a fine of Ksh. 100,000/= in default one year imprisonment from the time of Conviction.
The appeal succeeds to that extent only.
Judgment delivered dated and signed this 8th day of July, 2015
….......................
M. MUYA
JUDGE
8TH JULY, 2015
In open Court in the presence of:-
Learned Counsel for the prosecution Mr. Masila
Learned Counsel for the defence Mr. Gakuo
Court Assistant Musundi
M. MUYA – JUDGE
Cash bail to be utilized as fine and balance if any to be refunded to the depositor.
…....................
M. MUYA
JUDGE
8TH JULY, 2015